When the Surveyor who did a full survey on the
house I was thinking of buying failed to spot an abundance of woodworm and some
damp, I complained, expecting him to apologise and offer some kind of modest
restitution.

But instead of fessing up, he trotted out a litany of irrelevant
excuses for not seeing the defects.

These were mostly attempts to divert attention from his
failings. Here are just two examples of his false claims:
I “did not obtain the prepurchase Estimates and Reports which were a requirement of the [Survey] Report.”
I “chose to ignore the advice of my report including advice to renegotiate and chose to purchase [the house] above
my valuation….”

These tactics were so irritating that I decided to take him to the Small Claims Court.

The
players

Me, a house buyer - the plaintiff
PW of WJ Chartered Surveyors of York, the defendant - the 'Surveyor’
Judge Fay Ellen Wright, the 'Judge’ - at Skipton County Court

Woodworm
and Damp

One area of woodworm infestation was in the dining room floorboards and joists,
the underside of which could easily be viewed from the cellar. [see
Photos]

One of the joists was immediately above the cellar door, which opened to the outside.
This door was low, about 4ft high, so an inspector would have to crouch down and look up to see the joist.
In an email, the Surveyor admitted that there was a view, albeit a restricted one:
"We could not gain access to the under floor cellar except limited view from the door".

But he didn't look up and so failed to spot the woodworm in the joist.

Then he tried to blame all sorts of obstructions for his failure. Here is a statement he gave to the Property Ombudsman:
“WJ states that while this area was inspected, it
was full of stored items, in need of cleaning and the light did not work. It
therefore may not have been possible to identify any sign of woodworm.”

There was also a damp area on a bedroom chimney breast – a classic place for damp patches.
An alert surveyor would have homed in on the damp area, which was clear of cupboards and other obstructions
and easy to see in daylight.
The Surveyor, though, found something to obstruct his view. The Property Ombudsman wrote: "…we would not expect the inside of the cupboard to be inspected.
Consequently, we consider it unlikely that the inspecting surveyor would have located the damp at the time of
inspection and it follows that we do not propose to take any further action in respect of this issue."

Complaint
stages

For the first stage of my complaint, the Surveyor
investigated himself.
He did not directly address either of the problems I’d
uncovered and concluded that he’d done nothing wrong.

The second step was a complaint to Ombudsman Services - Property,
an organisation funded by the property industry.
The self-styled Ombudsman did not directly address either of the problems I’d complained about and concluded
that the Surveyor had done nothing wrong.

The third stage was to sue in the Small Claims court.
I thought that for a relatively modest cost (£140) I might get an interesting experience. And so it proved.
Although I thought I had a strong case, I knew I only had a 50:50 chance of success.
This was because I might be caught out by legal loopholes I knew nothing about.
In addition, a knowledgeable friend advised that judges generally side with their fellow professionals.
And so it proved.

The
Small Claims track

as it’s called, is fairly straightforward – youfile a claim online, giving an outline of
your case.
After 6 to 8 weeks, when you’ve been allocated to a particular court, communications take place by post.

You are given a date for the hearing and a deadline to submit your detailed evidence in the form of a Witness
Statement. [1]

In my case, however, the Surveyor asked for the case to be struck out and, failing that, sought permission
to employ a barrister, at a cost, he claimed, of £750.

Professional witnesses and advocates are not encouraged by Small Claims courts, so a preliminary hearing
was ordered to examine these requests.
Since the court was unaware of the details of my case, I voluntarily sent it my Witness Statement.

Having read it, the court must have thought there was a case to answer, so refused the Surveyor’s requests
and cancelled the preliminary hearing.

The Surveyor delivered his own Witness Statement at the last possible moment before the deadline.
This meant I was unable to refute his claims by adding to my own Statement.

The Surveyor’s Witness Statement

Much of this document comprised attempts to divert the Judge’s attention from the woodworm and damp issues by using words such as
‘respected’, ‘professional’, ‘specialist’, ‘expert’, 'recognised, and ‘prominent’, all intended, no doubt, to emphasise the superior
quality of his own and associated trades.

He began by trying to persuade the Judge that he, Mr Reasonable, was the subject of a
vexatious claim from a client who was trying it on:

“As an active Christian I have...been anxious to look compassionately at the case.”

There was a detailed CV: “My name is PW. I am a Fellow (FRICS) of the
RICS. I qualified as a Chartered Surveyor in 1980 having trained with the
District Valuer and Valuation Officer (Inland Revenue) from 1974, then moving
to Local Government … and subsequently into Private Practice. I also hold a
Teachers Certificate in Mathematics and Education.”“I have experience over 43 years in the inspection,
surveying and valuation of properties similar to the subject of this Report.
Over that period of time I have been employed by Central and
Local Government and as a Senior Chartered Surveyor by prominent Regional Firms
of Surveyors and Valuers.”

The
hearing

The hearing began badly. At the appointed hour, an usher came over and said the Judge was just having a cuppa
because she was running late.
It was a lengthy brew – an hour later we were escorted to her office and sat before her at a table with space for 6.
It would have been tricky if members of the public had wanted to attend the hearing.

The Judge did not trouble to introduce herself and I only learned that her name was Fay Ellen Wright
by calling the court afterwards.
It’s my experience that professionals who neglect to introduce themselves are less likely to respect their clients. And so it proved.

Judge Wright spoke slowly and carefully, making it clear that she was going to be meticulous in applying the rules,
a stickler for the procedures.
She declared that she had read our Witness Statements, so there was no need to repeat them.

My evidence

As the plaintiff, I went first, giving a point-by-point refutation of what the Surveyor had put in his Witness Statement.

He'd claimed there was no electricity at the house on the day of the survey.
But Northern Powergrid told me there were no power cuts that day.
And the vendor insisted that she never turned the power off.
The alleged lack of electricity wasn’t a big issue because both defects were easily visible in daylight.
Still, I thought it might be worth trying to show the court that the Surveyor's evidence was unreliable.
But before I could relate my findings, Judge Wright interrupted, declaring that as they were not in my Witness Statement
they could not be used.
She also remarked that even if they had been presented earlier, she could not attach any weight to them unless the people who’d given me
the information came to court as witnesses to be cross-examined to check their credibility.

Next, I tried to challenge the Surveyor’s claim that the access to the cellar was so blocked by stored items (garden tools)
that he couldn’t do a full inspection.
I’d prepared a sketch of the doorway and the short passage beyond, thinking it would help the Judge understand the layout.
But she refused to look at it, saying it was new evidence.

One of the Surveyor’s irrelevant criticisms was that I’d rejected his advice to get a survey done by a
specialist woodworm contractor such as Rentokil.
After remarking that Rentokil had once tried to defraud me, I said I 'd written to the Property Ombudsman to ask if I really needed
to book such a survey. The surprising answer was that a survey would not be necessary.
But before I'd finished the Judge intervened, once again declaring that this was new evidence that could not be used.

Looking across the table at the Surveyor, I could sense his inner smirk widening.
It must have widened further when Judge Fay Wright allowed him to get away with doing exactly the same thing – giving evidence that had
not previously been presented.

The Surveyor’s evidence

When it came to the defendant’s turn to speak, the Surveyor claimed I had discovered the damp and woodworm
only when I undertook “invasive investigations” and “renovations”, adding in a patronising tone, “as
is often the case”.

This wasn't true and hadn't come from me. So where had he got it from?

He didn’t say.
Judge Fay Wright didn’t ask.

He went on to claim that I had only found another area of woodworm (in the garage) when I'd “excavated”
a beam above the door from inside
the building.

This was pure invention; it was not in his Witness Statement and it was unsubstantiated.
The claim that the woodworm was found inside the garage suited him nicely – he had not been
given the key to the garage, so had a ready-made excuse for not seeing any defects there.

But I had actually discovered the woodworm when I tapped a cable clip into the beam from the outside.
It had sounded hollow. This was because the worms had eaten every last bit of solid oak, leaving a fragile veneer of paint and sawdust. [2]

Outraged at the lie, I interrupted the Surveyor and was (rightly) admonished by the Judge.

But Judge Wright did not admonish the Surveyor for presenting new evidence.

She made no attempt to be even-handed - her stricture about not using evidence unless it had previously
been presented to the court was not applied to the other party.

Cross-examining
the Surveyor

I was allowed to cross-examine the Surveyor.
I was still interested in the matter of the lack of electricity at the house and approached the question obliquely.
I asked if he’d used the code given him by the estate agent to disarm the burglar alarm.
The Surveyor couldn’t remember.
I pointed out that the alarm would have sounded off if it were not disarmed, even if there was no mains electric power.
I added that the vendor told me she had never left the burglar alarm disarmed.
The Judge bristled. But the Surveyor had made the first mention of the burglar alarm in his own Witness Statement,
so I was entitled bring it up. I realised that upsetting the Judge wouldn’t help my case but by this time I knew it was a lost cause.

Points
of access

I moved on to the critical question of why the Surveyor had
not seen the woodworm in the joist directly above the cellar door.

He had consistently claimed that the doorway and the passage
beyond had been blocked with garden tools. I didn’t believe it because I’d
viewed the cellar only a few days earlier and had been able to move around
freely. The house was unoccupied so there were unlikely to have been any changes since then.
He’d already admitted that he’d managed to get a few feet into the cellar.
So I asked him why he was claiming that a blocked doorway had prevented him from seeing the woodworm.

He surprised me: “I’ve not said the door was blocked.”

Judge Fay Wright jumped in sharply, as if to support him, demanding: “Where does he say the door was blocked?”
I said he used the term “access point”, which I took to mean door.

The Judge said firmly that the “access point” did not mean the door.

The Surveyor added it meant that once you get into the area you can't get any further.
If I’d thought on my feet, I would have retorted, “A point is a point. If you meant ‘area’, why not say ‘access area’?”

I wondered at the Judge’s confident intervention: she seemed to have researched the definition of “access point”
beforehand.

I did my own research afterwards and concluded that Judge Wright was wrong – in British English usage,
“access point”does mean door. [3]

Negligence

Despite feeling a bit shaken by this exchange, there was a glimmer of light at the end of the tunnel, sorry cellar.
The Surveyor had just confirmed that the doorway was free of obstructions (“I’ve not said the door was blocked”).

I asked: “Why didn’t you just look up [at the joist]?”
His answer told me what I’d already guessed – that he’d missed the woodworm because he was busy trying to get into the cellar,
concentrating on other things, missing the obvious:
“If you’re crouching to go in and you’re looking round…it’s very restrictive access…I really can’t help you any more.”

For a professional man employed to do a job, it sounded rather
like an admission of negligence. [4]

Summing
up

But if the Judge noticed the Surveyor's admission she said nothing about it in her summing up.
Instead, she helped him out with an excuse for not spotting the woodworm, an excuse that the Surveyor himself had not thought of.

She declared that using a head torch in an area of restricted height would have limited his ability to see
the wormholes.
She did not explain how it could have done this.

PW did mention using a head set, presumably a head torch and had also told the court:
"I used torches along with my other surveying equipment."
He did not say where he'd used the torch or that it had interfered with his inspection.

What, I wondered, was going on? [5]
Are judges are entitled to come up with speculative notions that bolster the case of one of the parties?
And if it was not speculative, what had prompted the Judge Fay Wright’s trip into the light fantastic?

Continuing with her summing up, the Judge dealt with the damp issue.

During the hearing, the Surveyor had not come up with any credible reasons for not reporting the
damp patch in the bedroom.
All he'd mentioned in his Report were some twigs on top of the nearby chimney stack and a possible problem with soot on its outside. [6]

So, he'd reported blackness, but not dampness.

To his rescue rode the redoubtable Judge.
She declared that the Surveyor could not be expected to find
a damp patch in the bedroom because the chimney inspection was carried out from the ground (with binoculars, presumably).

Now it is perfectly reasonable to link a damp chimney breast with the nearby chimney stack.
But the Surveyor never said that he'd viewed the chimney from the ground.
He did say (in his Report) that he'd brought a ladder so might well have inspected this particular stack at close quarters.
But he did not say so or refer to it in any of the documents he presented to the court.

So, with her chimney chicanery, Judge Fay Wright had handed the Surveyor a clean sweep.

Verdict

After a hearing lasting an hour and three-quarters, she declared that there was no departure from
the accepted standard of a competent surveyor and dismissed my suit.

She then looked towards the Surveyor and asked if he wanted to apply for costs.

He could only have asked for his travel expenses and loss of earnings, the latter being limited to £90 for the day.
However, he must have remembered he was an 'active Christian',
for he said he was happy to be magnanimous and did not want to apply for costs.

Appeal

You can appeal Small Claims verdicts though you only get 21 days to do so.
It is not a true appeal because you can only challenge a verdict on the grounds that the judge has made a procedural error.
This is more like the complaints process of a private company, except that the MOJ charges rather a large fee - £120 plus
£100 for a late application, known as an Extension of Time. The latter is believed to be free in Scotland.
Although I thought Hell might freeze over before an appeal judge would criticise a fellow judge, I decided to give it a go.

But first, I thought I would need hard evidence.
The notes that I saw Judge Wright writing would almost certainly be used by the appeal judge to find out what had gone on at the hearing.
I felt that in the interests of fairness I was entitled to have access to those notes.
So I applied to see them, using a SAR (Subject Access Request).
40 days later I was not surprised to be told by HMCTS (HM Courts and Tribunals Service):
"You do NOT have a right of access to the information" (my emphasis).
So my request was rejected. Or was it?
Although they didn't return my £10 fee, I assumed the cheque had been binned. But 3 months later it was presented for payment.
I asked for a refund but was ignored.
I made a formal Complaint and got a somewhat disconcerting response:
"This request was NOT rejected".
This was either a cock-up or bureaucratic doublethink. I asked my MP to investigate.
John Grogan MP did not respond so I filed a complaint with the PHSO (Parliamentary Ombudsman).
I got a prompt reply stating that HMCTS were claiming that the SAR fee is non-refundable:
"We contacted HMCTS to establish the current status of your complaint following their correspondence with you.
They explained that a standard £10 fee is charged for a Subject Access Request (SAR) which is to cover the investigation
and response from the assigned Knowledge Information Liaison Officer (KILO).
HMCTS explained that you received a response from the KILO and the £10 fee is non refundable."
This explained nothing so I appealed the PHSO's adjudication.
Months later, the PHSO told me that Judge Wright had looked at the notes I'd asked to see and concluded, remarkably,
that "there was no personal data in them".
So I'd been wrong to assume that she was taking notes about what we said in court.
Not so: Judge Wright was probably just doing her shopping list.
Her convenient conclusion allowed the authorities to say that my SAR was NOT rejected because there was no data to be rejected.
"If it were rejected", declared the PHSO, "that would mean that the request was not processed at all".
It all makes perfect sense!

While this was going on I decided to have a go at obtaining the actual audio recording of the hearing.
After all, it was made in open court, so should be accessible to anyone who wants to listen to it.
Naturally, HMCTS rejected my SAR but this time the fee was returned to me.
I was given information on how to get an official transcription of the recording so, ever anxious to keep my civil servants busy,
I filled in the form.
The court had to send the recording to Ubiqus, a firm of transcribers in London, who provided me with a quote.
This came so quickly - 5 days - that the recording must have been sent electronically and so is likely to be digital.
The recording would cost a little over £300 to transcribe, I was told. Thanks but no thanks.

I asked the ICO (Information Commissioner's Office) to review the rejection of my SAR for the recording.
9 weeks later the ICO said I was NOT entitled to the Small Claims audio recording.
This is their opinion:
"Unfortunately, we would advise that audio recordings
of Court Proceedings are considered exempt from disclosure under Section 7 of the DPA. This is because, section 34 of the DPA states that;
“Personal data are exempt from—
(a) the subject information provisions,
(b) the fourth data protection principle and section 14(1) to (3), and
(c) the non-disclosure provisions,
if the data consist of information which the data controller is obliged by or under any enactment
[other than an enactment contained in the Freedom of Information Act 2000] to make available to the public,
whether by publishing it, by making it available for inspection, or otherwise and whether gratuitously or on payment of a fee.”
This means that if a data controller is obliged to make personal data publicly available due to any other legislation,
then the personal data is exempt from the subject information provisions.
This is the case for transcripts which can be requested under the Court Procedure Rules (CPR).
As the data contained within transcripts and audio recordings are considered to be the same, section 34 of the DPA
would apply to both audio recordings as well as transcripts.
This means that you would not be entitled to the audio recordings requested in your SAR.
It can be said that while the data contained within the audio and the transcripts are the same,
audio can contain additional data to that in the transcript.
To request the audio over the transcripts, an individual would need to demonstrate that the audio contains more personal
information than that which is contained within the transcripts.
In order to do this, an individual would need to explicitly state their rational for this, the consequences that the
tone had on their case and why the tonality is particularly significant to their request."

By this contrivance the Ministry of Justice can stop petitioners getting their hands on original material.

With no guarantee of a bias-free hearing and an outlay of £520+ I decided not to proceed with my appeal.

Advice

AThis particular Small Claims court was not consumer friendly:
it was more like the Old Bailey than Judge Rinder.
There were times when I wished I'd had a solicitor or a MacKenzie's Friend to hand.

BDo not be tempted to compile a concise Witness Statement that
will relieve the judge of having to trawl through reams of stuff, in the hope that he or she will look favourably upon you.

CInclude every single piece of documentation so that the judge can never accuse you of
introducing new evidence.

DIf you want to sue a professional organisation for giving poor service, don’t bother.
Too much rests on the judge’s opinions, biases and prejudices.

EThe Small Claims court is really only effective for cut-and-dried cases such as when
you’re owed money and have documentary proof of the debt.

FIf you need a building survey, hire a builder or a similar tradesman with real
experience of houses.

GThe above advice applies to England.
If you live in Scotland, it is obligatory for house sellers to employ a surveyor to produce a Home Report.
I have used six or seven surveyors in Scotland and have always found them to be straightforward,
competent and thorough.

Footnotes(emphases
in bold are mine)

[1] This is a statement of
your claim, cross-referenced to emails, photographs, receipts and any other
evidence. It has to be completed to a fairly precise format laid down by the
court. All your evidence must be included because you can’t use anything at the
hearing unless it’s in your Witness Statement.

[2] The woodworm in the garage was not part of my claim because WJ's
Terms and Conditions excluded outbuildings from the survey.

[3] Although the term
‘access point’ is not a recognised compound noun and is rarely found in British
English dictionaries, it is sometimes used by the UK property industry, when it
refers to a doorway, ie a place where you would find a door or perhaps a gate, manhole cover or hatch.
These examples come via Google:
- in estate agent’s brochures: “There is coving to ceiling and a doorway leading to the side
hall which provides useful access point from the front elevation.”
- on architect’s drawings:
Broxtowe Borough Planning Dept keeps a plan with the notation ‘access point/doorway’
accompanied by an arrow indicating a door.
- by builders: “Back to project manager, Paul, he’s happy it’s plaster and instructs the builder to cut
an access point in the corridor where he wants the doorway.”
- in survey reports: I asked the RICS about the term. Its librarian, Annette Howard, wrote,
“I confirm that the term is used in our Homebuyer Report both with and without a valuation but there is no RICS
definition of the term. I have not been able to find a definition of the
term in any general legal dictionaries which we have access to.”
Despite this lack of definition, the RICS, in its Guidance to surveyors, makes it clear that ‘access
point’ refers to a hatch (or anything similar, such as a door):
“Subfloor areas are inspected only to the extent visible from a readily accessible and unfixed hatch
by way of an inverted ‘head and Shoulder’ inspection at the access point.”
The OED is one of the few dictionaries to mention the term, but as an example only; one of its
definitions of ‘Access’ is given as: “With the sense ‘that provides a means of entry; designating an opening or
entrance’, as access hatch, access point, etc.”.

[4] This excuse by the Surveyor is uncannily similar to one given by a plumber to a court in Stirling
when answering a charge of negligently installing a gas boiler, causing a house to explode.
Referring to a failed pipe joint the plumber resorted to the tried and tested restricted access routine, saying:
"It's in a tight space, you've got a boiler in front of you..", making it difficult to visually inspect the work.
The tradesman was tried and tested and, in this instance, found guilty of negligence. (BBC News 22 Dec 2017)

[5] The Surveyor had mentioned that he wore a hard hat to protect his head.
Could it be that in the Wonderland that was Judge Fay Wright's court, "hard hat" somehow metamorphosed into "head torch"?
If so, perhaps the court could usefully employ an official to issue corrections to confused judges, just as in the original
Wonderland, when the King of Hearts declares, "That's very important", the White Rabbit corrects him saying,
"Unimportant, your Majesty means".
The exchange in Fay Wright's Wonderland court might have gone as follows.
Judge Wright: "The Surveyor's ability to see the woodworm would have been limited by his use of a head torch."
White Rabbit: "Hard hat, your Ladyship means."
Judge Wright: "Seize that rabbit. Off with his head."

And this, gentle reader, may be how that eccentric judge, Fay Wright, mistook his light for a hat.

[6] The Surveyor also reported twigs from a crow's nest in the chimney pot.
But the photographs he presented to the court actually show a metal cowl atop the pot.
It appears to be fixed to the pot by several spindly rods, which to the untutored eye might look like twigs.
This
picture shows the chimney pot as it was on the day of the survey;
I have added the relevant text from PW's Survey Report.

Disclaimer

To the best of my belief this blog is a factual account of what was said at the hearing. Naturally the interpretation of those facts is mine.
Words inside quotation marks are derived from my contemporaneous notes and are believed to be accurate.
I am aware that losing litigants often accuse judges of bias.
I hope I have shown that this Judge blocked parts of my case for breaking the rules, whilst allowing the other party to break the same rules.
In addition, she bolstered the other party's case with her off the wall remarks and imaginary evidence.
If she wasn't biased then Judge Fay Wright must have been having a bad brain day.